1.DINESH MAHESHWARI, J. Leave granted.
2.This appeal by the defendant in a pending suit for specific performance (Suit No. 1821 of 2004) is directed against the judgment and order dated 30.11.2021, as passed by the Division Bench of the High Court of Judicature at Bombay in Appeal No. 10 of 2020 arising from an order dated 02.05.2019 in Notice of Motion (L) No. 1014 of 2019 in the said suit. 2.1. By the said order dated 02.05.2019, the learned Single Judge of the High Court dealing with the trial of suit in question, had accepted the notice of motion moved by the defendant-appellant so as to take the Signature Not Verified Digitally signed bybelatedly filed counter-claim on record. The Division Bench of the High NEETA SAPRA and has remitted the matter for consideration afresh, essentially on the ground that the plaintiffs were not afforded adequate opportunity to file reply and to contest the said notice of motion.
3.In this appeal, the main plank of submissions on behalf of the defendant-appellant is that in view of the order dated 26.02.2021 as passed by this Court in relation to the incidental proceedings pertaining to the same suit, the proceedings in question need to progress with the counter-claim on record; and, in any case, there was no justification for the Division Bench interfering with the considered order of the Single Judge taking the counter-claim on record. On the other hand, it is submitted on behalf of the plaintiffs-respondents that the Division Bench of the High Court has rightly interfered because the order dated 02.05.2019 was passed by the Single Judge without giving opportunity to the plaintiffs-respondents to contest the notice of motion; and in the true operation of the applicable rules of procedure, the counter-claim in question, which was filed nearly 13 years after filing of the written statement, could not have been taken on record, particularly when there had not been a semblance of reason for such a gross and inordinate delay. 3.1. Thus, the short question calling for determination in this appeal is as to whether the Division Bench of the High Court has been justified in interfering with the order passed by the Single Judge for taking the counter-claim on record.
4.Apropos the foregoing outline and the short question involved, the background aspects of the matter could be noticed in brief, and only to the extent relevant for the present purpose. 4.1. In relation to the suit property situated at Vile Parley, Dadabhai Road, Mumbai, the plaintiffs-respondents have filed the suit in question bearing No. 1821 of 2004 on 10.06.2004, seeking specific performance of an alleged agreement for transfer dated 28.05.2001, said to have been executed by its owner, late Ramalaxmi Ravishankar Trivedi, who was the sister of the appellant and who expired on 31.01.2004. In the said suit, apart from the appellant, other legal heirs of the deceased owner were also arrayed as defendants. The appellant filed his written statement in the suit on 16.11.2005. 4.2. It has been pointed by the appellant that he had acquired all the rights in the suit property by testamentary succession and by settlement with the said other legal heirs of the deceased owner. According to the appellant, the matter relating to his succession to the suit property ultimately got settled only on 05.04.2017. Thereafter, on 16.01.2018, for the appellant having acquired ownership rights in the suit property, Chamber Summons (L) No. 559 of 2017 was filed in order to delete other defendants from Suit No. 1821 of 2004; the said chamber summons was allowed and the defendant Nos. 1,2,4, & 5 were deleted from the array of parties. 4.3. Thereafter, on 07.09.2018, the defendant-appellant filed his counter-claim (signed on 18.08.2018) in this suit in the registry of the High Court. When the suit was taken up for framing of issues on 05.12.2018, the learned Single Judge of the High Court dealing with the suit took objection against such filing of counter-claim much after the defendant had entered his written statement and without taking leave of the Court, particularly with reference to Rule 95 of the Bombay High Court (Original Side) Rules1. The learned Single Judge, therefore, ordered that the counter-claim be de-registered and be returned to the counsel for the appellant. The counsel representing the defendantappellant sought leave to file an appropriate application for liberty to file the counter-claim. The learned Single Judge declined this prayer, lest it was construed as some sort of permission for filing the counter-claim belatedly. Thereafter, the learned Single Judge framed the issues that very day (05.12.2018) and the matter was posted for evidence. For its relevance, we may reproduce the contents of the order so passed by the learned Single Judge on 05.12.2018 as under: -“1. The suit is for framing issues. Defendant No. 3, the sole surviving Defendant entered his Written Statement on 16th November 2005. It appears that, entirely contrary to the provisions of Rule 95 of the Bombay High Court (Original Side) Rules, the 3rd Defendant has very recently purported to lodge a CounterCounter- Claim. In some fashion that I am wholly unable to comprehend, the 3rd Defendant has, without prior leave of the Court, got a lodging number for the Counter-Claim. 2. Rule 95 is in pari material with Order VIII Rule 6-A of the Code of Civil Procedure, 1908 (“CPC”). Both say that a Counter-Claim proceeds like a cross-suit. This means that, exactly as in the case of a plaint, every Counter-Claim is also subject to issues of 1 ‘the Rules’, for short. statutory limitation. But in addition, Counter-Claims are subject to a further stipulation not applicable to a suit. Both Rule 95 and Order VIII Rule 6-A specify an outer limit beyond which no Counter-Claim can be filed. In other words, it is not open to a defendant to file a Counter-Claim at any time that defendant chooses. It must be filed along with the defence or before the time limited for filing the defence has expired. In no view of the matter could the 3rd Defendant have lodged any Counter-Claim in 2018. 3. The Registry is not to accept Counter-Claims in this manner contrary to the express wording of Rule 95 of the Bombay High Court (Original Side) Rules without an order of the Court. It is not even to accept a Counter-Claim for presentation or lodging beyond the time prescribed in Rule 95. 4. The existing Counter-Claim (L) No. 186 of 2018 will be de-registered and returned to the Advocate for Defendant No. 3 forthwith.
5.Mr Tamboly seeks leave to file an appropriate application for liberty to file a Counter-Claim. I cannot grant any such leave, lest it be construed as some sort of permission or a finding that a Counter-Claim can be filed well after the time period set out in Rule 95. I am therefore neither granting or refusing leave.
6.There is also a pending Notice of Motion by the 3rd Defendant, Notice of Motion No. 1713 of 2018. The Additional Affidavit in Support of that Notice of Motion is to be filed in the Registry on or before 7th December 2018. Affidavit in Reply by the Plaintiff is to be filed and served on or before 1st February 2019. No Rejoinder is to be filed without leave of the Court.
7.List Notice of Motion for hearing and final disposal on 6th February 2019.
8.The Suit is taken up for framing issues. Issues are framed and these are appended to this order.
9.The Plaintiffs shall, on or before 18th January 2019 file (i) the Evidence Affidavit of the Plaintiff; (ii) an Affidavit of Documents; and (iii) a Compilation of Documents duly indexed and paginated. Copies of each of these will be served on the Advocates for the Defendants on or before that date.
10.Discovery and inspection are to be completed and statements of admission and denial are to be exchanged on or before 1st February 2019.
11.There will be no extension of time. In default of compliance, the suit will stand dismissed without further reference to the Court.
12.On the Plaintiffs complying with these directions, the matter will be taken up for marking of the Plaintiffs’ documents and further directions on 8th February 2019 irrespective of the caption under which the matter appears.
13.The Plaintiffs are not to tender original documents and are required to file and serve a compilation of authenticated copies. The Plaintiffs agree and undertake to preserve the originals and produce it in Court as and when required until final disposal of the Suit.
14.It is clarified that all subsequent events, i.e., those after the
filing of the suit may be referred to in the Affidavit in lieu of
Examination-in-Chief of either side.”
4.4. The defendant-appellant challenged the aforesaid order dated
05.12.2018 in an intra-court appeal. In the said appeal, it was submitted
on behalf of the appellant that an appropriate application seeking leave to
present the counter-claim shall be filed to which, the learned counsel
appearing for the plaintiffs-respondents submitted that the appropriate
application could be dealt with by the Single Judge on its own merits and
the plaintiffs-respondents will not raise objection to the application
seeking such leave on the ground that the issues had already been
framed and documentary evidence presented. In view of the submissions
so made, the Division Bench of the High Court, by its order dated
29.03.2019, granted permission to the appellant to file the necessary
application within two weeks, while leaving it open for the Single Judge to
decide the same on its own merits on consideration of objections that
might be raised by the plaintiffs. The relevant contents of order so
passed by the Division Bench of the High Court on 29.03.2019 read as
under: -
“1]The appellant is objecting to the order passed by the learned
Single Judge dated 5th December, 2018 in Notice of Motion
No.1713 of 2018 in Suit No.1821 of 2004 directing the
de-registration and return of counter claim (L) No.186 of 2018
presented by the appellant – original defendant no.3. The counter
claim has been returned back essentially for the reason that the
application seeking leave has not been presented by the
appellant.
2] The learned Senior Counsel appearing for the appellant states
that he will tender an appropriate application seeking leave to
present the counter claim. Learned counsel appearing for the
Respondent contends that if appropriate application is presented,
the same can be dealt with on its own merits and appropriate
order can be passed by the learned Single Judge dealing with Suit
and that the Respondent – original plaintiff will not raise the
objection to the application seeking leave on the ground that the
issues have already been framed and documentary evidence has
been presented.
3] Without considering merits of the controversy, we permit the
appellant herein – original defendant to present an application
seeking leave, together with counter claim in Suit No.1824 of
2004. If the appellant-original defendant presents an application
seeking leave within a period of two weeks from today, the learned
Single Judge may consider and decide the same, on consideration
of the objections those may be raised by the respondent-original
plaintiff on its own merits and in accordance with law. In view of
the above, the appeal stands disposed of. In view of disposal of
the appeal, pending Notice of Motion does not survive and stands
disposed of.”
4.5. In view of the liberty so given by the Division Bench, the appellant
filed Notice of Motion (L) No. 1014 of 2019 (later numbered as Notice of
Motion No. 1547 of 2019) seeking leave to file the counter-claim claiming
possession of the suit property. A copy of the affidavit filed in support of
this notice of motion has been placed before us wherein the appellant has
stated the reason and basis of his filing counter-claim to avoid multiplicity
of proceedings without altering the nature of the suit in question; and has
also pointed out that the counter-claim was filed before framing of issues
and only after he became entitled to the suit property upon finalisation of
the dispute relating to succession. The appellant, inter alia, stated in this
affidavit as under: -
“17. I say that I have therefore filed the present notice of motion
seeking leave of this Hon'ble court to file the Counter claim for
effective adjudication of disputes between the parties. In view of
following reasons
a. The suit is for specific performance of the agreement dated 28th
May 2001, clause no. 4 of the suit agreement clearly records that
the Plaintiffs were put in vacant and peaceful possession upon
execution of the agreement.
b. In the event the above suit is dismissed by this Hon’ble court,
then this Defendant would be entitled to seek vacant and peaceful
possession from the Plaintiff which the plaintiffs are enjoying under
the Suit Agreement and hence the Counter Claim seeking vacant
possession of the suit property is necessary to avoid multiplicity of
proceedings and to avoid delay.
c. The claim of possession is not Barred by limitation, As this
defendant would be entitled to seek possession only upon
dismissal of the suit and both issues can be decided together
simultaneously. As of today the Plaintiff is claiming possession of
the Suit Property under the suit agreement and not either adverse
possession or illegal trespass. My counterclaim claiming
possession of the suit property is based on my title to the suit
property. I am a lawful owner of the suit property. My right to
recover possession of the suit property will start from the date the
plaintiff refuses to hand over the possession and/or claims
adverse possession of the suit property. In these circumstances
my claim of possession in the suit property is not barred by law of
limitation.
d. That the counter claim was filed prior to framing of the issues in
the above suit.
e. This Defendant became entitled to the suit property only upon
settlement of disputed between the legal heirs of Smt. Ramalaxmi
Trivedi and finalization of the probate in 2017.
f. This Defendant or the original defendants never made any
attempts to delay the proceedings and on the contrary after this
defendant obtained probate, this defendant took steps to get the
hearing of the above suit and the suit was proceeded till the
framing of issues and filing of affidavit of evidence along with the
compilation of documents.
g. The counter claim will not materially change the nature of the
suit and only additional issues will be required to be framed so that
both the counter claim and the suit can be decided together.
f. Permitting this defendant to file the counter claim will not cause
any prejudice to the plaintiff as there will not be any change of
cause of action in the suit and the Counter claim is only in the
nature consequential reliefs.”
4.6. While considering this notice of motion, the learned Single Judge
felt satisfied to grant leave to file the counter-claim, particularly to avoid
multiplicity of proceedings. Therefore, by the order dated 02.05.2019, the
learned Single Judge made the notice of motion absolute with the
clarification that all the defences of the plaintiff, including as to limitation
were kept open. In fact, the learned counsel appearing for the plaintiffs
also waived service of the writ of summons of the counter-claim and
agreed that the written statement (to the counter-claim) shall be filed
before 21.06.2019. The relevant contents of this order dated 02.05.2019
read as under: -
“1. The Suit is for specific performance. The Defendant
filed a Written Statement on 16th November 2005. He did not file
any Counter Claim. Leaving aside the very many interim orders,
on 5th December 2018 the suit was notified for framing issues. I
found that the Defendant had purported to lodge a Counter Claim.
I held that Rule 95 of the Bombay High Court (Original Side) Rules
is in pari materia with the provisions of Order VIII Rule 6-A of the
Code of Civil Procedure 1908. If a Counter Claim was not filed
before the Defendant delivered its defence, then leave of the Court
would be required. In paragraph 3 of my order of 5th December
2018, on an interpretation of Rule 95 of the Bombay High Court
(Original Side) Rules, I held that the Counter Claim required an
order of the Court. I directed the existing Counter Claim to be
returned. The Defendant carried the matter in Appeal. The
appellate order of 29th March 2019, without going in to the merits
permitted the Defendant to present an application seeking leave
along with the Counter Claim. This Motion is that application. It
seeks precisely that leave under Order 8 Rule 6-A and Rule 95
read with Order VIII Rule 9 of the Code of Civil Procedure 1908.
2. This having been done, I can see no reason to refuse the
leave. The defendant could as well have instituted a separate suit.
Had he done so, the cross suit would have been tagged with the
present suit. The subject matter of the two suits is the same. The
Counter Claim will serve as a convenient method of disposing of
both rival claims together and possibly even with common
evidence, thus preventing multiplicity of proceedings. The
Defendant has also to pay the full Court fee on the Counter Claim.
3. In these circumstances, the Notice of Motion is made absolute
in terms of prayer clause (a) with a clarification that all defences of
the Plaintiff including as to limitation are specifically kept open.
The Counter Claim has already been lodged. It will be numbered
within a week from today. A copy has been served.
4. The Plaintiff waives service of the Writ of Summons of the
Counter Claim. She agrees that the Written Statement will be filed
and served on or before 21st June 2019.”
4.7. The aforementioned order dated 02.05.2019 was challenged by
the plaintiffs-respondents an intra-court appeal that has been considered
and allowed by the impugned order dated 30.11.2021. Before adverting to
the contents of the impugned order dated 30.11.2021, it shall be
worthwhile to take note of the other incidental and ancillary proceedings
in the course of the trial of this suit after passing of the said order dated
02.05.2019.
5. On 28.06.2019, the plaintiffs-respondents sought extension of
time for filing written statement to the counter-claim, which was granted
and the matter was adjourned to 11.07.2019. Then, on 09.07.2019, the
written statement to the counter-claim was filed by the plaintiffs-
respondents. However, before further progress of the matter, the
appellant filed Notice of Motion No. 2601 of 2019 on 18.09.2019, seeking
leave to transfer right, title and interest in the suit property to third parties.
This notice of motion was dismissed on 21.01.2020. Thereafter, on
28.01.2020, issues were framed on the counter-claim; examination-in-
chief of PW-1 and marking of documents was completed; and
commissioner was appointed to record the cross-examination of PW-1.
The proceedings of commission for recording cross-examination were
held from 05.02.2020 onwards. In the meantime, the appellant preferred
intra-court appeal against the aforesaid order dated 21.01.2020, being
Appeal No. 67 of 2020. This appeal was considered and disposed of by
the Division Bench of the High Court on 20.01.2021 providing for
expeditious disposal of the suit but not granting the prayer of the
appellant, for leave to transfer the property in question during the
pendency of the suit. Being aggrieved, the appellant approached this
Court by filing a petition for Special Leave to Appeal2, being SLP (C) No.
1786 of 2021.
6. The order passed by this Court on 26.02.2021 in disposal of the
said SLP (C) No. 1786 of 2021 is of bearing in the present appeal in view
of the submissions made before us and, therefore, it would be appropriate
to take note of the salient features and the relevant contents thereof in
necessary detail. Therein, this Court took note of the submissions made
by the parties, including the anxiety of the appellant to dispose of the
property in view of his advanced age as also the undertaking of the
prospective purchasers to abide by the outcome of the suit. After
interacting with the learned counsel for the concerned parties, this Court
passed the order delineating the conditions agreed upon by the appellant
and the prospective purchasers. This Court also took note of the
apprehension expressed on behalf of the plaintiffs-respondents about the
legal heirs of the appellant later on claiming rights in the property and
counter submissions in this regard on behalf of the appellant. Thus,
having settled the matter relating to the prayer of the appellant for leave
to transfer the right, title and interest in the property in question, this Court
expected all the parties to extend the co-operation in early disposal of the
suit as already directed by the Division Bench of the High Court. The
order so passed by this Court on 26.02.2021 reads as under: -
2 ‘SLP’, for short. “A peculiar issue arises for our consideration. The petitioner had approached the High Court by way of Notice of motion No. 2601 of 2019 in Suit No. 1821/2004, in which the petitioner is defendant, for limited relief of permitting the petitioner to dispose of the suit property without prejudice to the rights and contentions of the respondent(s)-plaintiff(s) as he had already reached the advanced age (87 years) and wanted to settle all his issues at the earliest possible opportunity.
The Single Judge declined to grant that relief to the petitioner, so also the Division Bench vide impugned judgment and order. The Division Bench, however, thought it appropriate to expedite the suit pending since 2004 and issued suitable directions in that regard.
The grievance of the petitioner is that although the suit is directed to be disposed of expeditiously, it is unlikely that the litigation would finally end in the near future. Considering the advanced age of the petitioner, therefore, it may not be just and proper to keep the petitioner waiting for the outcome of the proceedings, especially when the petitioner as well as the third party-proposed purchasers are willing to abide by the outcome of the pending suit and also give necessary undertaking within two weeks from today, including to indemnify the respondent(s)plaintiff(s), if and when occasion arises.
Considering this submission, we called upon the petitioner to give notice to the proposed purchasers. They are represented through Mr. Gopal Shankaranarayanan, learned senior counsel instructed by Mr. Ajit Wagh, learned counsel.
On the oral request made by the learned counsel for the petitioner, we permit the petitioner to implead the proposedpurchasers as party respondents in these proceedings. Amendment be carried out forthwith.
After interacting with the counsel for the concerned parties, we record the agreement reached between them and dispose of this petition on that basis.
It is agreed, in principle, by all concerned that the proposed sale of the suit property by the petitioner be made subject to the outcome of the pending Suit No.1821/2004 and without prejudice to the rights and contentions of the respondent(s)-plaintiff(s), in any manner.
The conditions agreed upon by the petitioner and the proposed purchasers (added respondents) are delineated as follows: (a) The transfer deed in respect of suit property between the petitioner and proposed purchasers (added respondents) shall be executed within three weeks in the name of “AMAR LIFESPACES LLP”, a family firm and the three partners thereof, namely, Dinesh Joshi and his two sons (i) Gaurav Joshi and (ii) Hemang Joshi. (b) The original deed to be so executed shall be submitted by the petitioner and the proposed purchasers (added respondents) in the High Court and would continue to abide by the orders of the High Court in that regard.
(c)The petitioner and the proposed purchasers (added respondents) undertake that they shall not create any third party right, title or interest in the suit property or indulge in further alienation thereof. (d) The petitioner as well as the proposed purchasers (added respondents) shall file an undertaking within two weeks from today in this Court and also indemnity bond so as to fully secure the interest of the respondent(s)-plaintiff(s) with regard to the right, title and interest of the suit property including to indemnify in respect of legal expenses to be incurred and liability of damages in that regard in any future litigation. (This indemnity is not applicable to the pending litigation between the petitioner and respondents and now the added respondents, namely suit No. 1821/2004. In other words, the parties will bear their own legal expenses in respect of the present suit proceedings.). (e)The proposed purchasers (added respondents) shall be impleaded in the suit pending before the High Court, who in turn undertake to adopt the written statement and counter claim filed by the petitioner in Suit No.1821/2004 as it is. They will not make any request for filing further written statements or independent written statement as such. (f) The suit shall proceed from the stage where it is presently pending and the proposed purchasers (added respondents) will not move any application for filing independent evidence/document. (g) Neither the petitioners nor the proposed purchasers (added respondents) will approach the occupants of the suit property either directly or indirectly or through their relatives and enter upon the suit property. (h) The petitioner as well as the proposed purchaser (added respondents) shall not claim any equity in any respect and abide by the outcome of the Suit No. 1821/2004. (i) The proposed purchasers (added respondents) shall record in the undertaking that they shall not transfer their share/change the composition of the firm nor dissolve the firm during the pendency of the suit.
Respondents-plaintiffs have expressed apprehension through counsel that the legal heirs of the petitioner may later on claim rights in the suit property, despite the sale in favour of the proposed purchasers (added respondents). This plea is refuted by the learned counsel for the petitioner on the argument that since the petitioner is claiming right, title and interest in the suit property on the basis of the will which stood probated in favour of the petitioner, the question of legal heirs claiming any right or obstructing the proposed transaction being entered into between the petitioner and added respondents, does not arise; nor they can do so during the life time of the petitioner.
Needless to observe that all parties including the newly added respondents shall extend full cooperation for early disposal of the suit as directed by the Division Bench of the High Court.
The special leave petition and pending applications are
disposed of in the above terms. Liberty is given to the parties to
apply, if necessary.
Registry is directed to accept the Vakalatnama/Appearance to
be filed by the advocate-on-record for the impleaded/newly added
party within one week from today.”
7. Thereafter, while the suit in question had been proceeding in
evidence, the said intra-court appeal bearing No. 10 of 2020, which was
filed against the order dated 02.05.2019 taking the counter-claim on
record, was taken up for consideration by the Division Bench of the High
Court on 30.11.2021. The aforesaid order of this Court dated 26.02.2021
was placed before the Division Bench for consideration but the Division
Bench also took note of the grievance of plaintiffs that they were not given
adequate opportunity of contesting the notice of motion for taking the
counter-claim on record; and considered it proper to remit the matter for
consideration afresh by the Single Judge while setting aside the order
dated 02.05.2019. The judgment and order so passed by the Division
Bench of the High Court on 30.11.2021 is in challenge in this appeal and
reads as under: -
“1. By the above Appeal, the Appellant has impugned the Order
passed by the Learned Single Judge dated 2nd May, 2019 granting
leave to the Respondent to file Counter Claim almost after a
period of seventeen years. Admittedly, the matter had appeared
before the Court for the first time on 2nd May, 2019, when the Junior
Advocate representing the Appellants requested for time to file
Reply. However, the Learned Judge declined to grant time and
proceeded to pass an Order in favour of the Respondent. In fact,
th the Respondent before us has relied on an order dated 26
February, 2021 passed by the Supreme Court which is passed
subsequent to the passing of the impugned order by the learned
Single Judge. In view thereof, we pass the following order :
(i) The impugned Order dated 2nd May, 2019 is set aside.
(ii) The Appellants shall file their response to Notice of Motion No.
1014 of 2019 within a period of one week from today.
(iii) The Respondent shall file his Rejoinder to the Reply within a
period of one week thereafter.
(iv) The Learned Single Judge is requested to hear the parties and
dispose off the Notice of Motion afresh within a period of two
weeks from the date of filing of the Rejoinder, without being
influenced by the Order passed by the Learned Single Judge
dated 2nd May, 2019.
(v) All contentions of the parties are kept open.
2. The above Notice of Motion is accordingly disposed off.”
8. Learned senior counsel Mr. Shyam Divan appearing for the
appellant has referred to the background aspects and has contended that
the impugned judgment and order dated 30.11.2021 remains
unsustainable for several reasons including the fundamental one that it
stands in the teeth of the order passed by this Court on 26.02.2021. The
learned senior counsel would submit that in view of the order passed by
this Court, the question of receiving the counter-claim on record no longer
remained open to be re-agitated, particularly when this Court approved
the proposition that the proposed purchasers, (who were to be impleaded
in the suit), shall adopt the written statement as also the counter-claim
filed by the appellant, as existing; and the suit would proceed further from
the stage it stood at the time of the passing of the order by this Court. The
learned senior counsel would submit that the said order dated 26.02.2021
was placed before the Division Bench and despite noticing the same, the
Division Bench has failed to consider that the question of taking counter-
claim on record could not be reopened.
8.1. The learned senior counsel has further contended that in the
impugned order, the Division Bench of the High Court has proceeded in a
rather cursory manner inasmuch as no reason whatsoever is assigned for
setting aside the considered order passed by the learned Single Judge on
02.05.2019.
8.2. The learned senior counsel has also referred to the said order
dated 02.05.2019 and has submitted that the learned Single Judge has
assigned proper reasons for granting leave to the appellant to submit his
counter-claim and has left all the defences of the plaintiffs, including that
of limitation open. This order, according to the learned senior counsel,
was not suffering from any infirmity so as to warrant interference.
9. Per contra, the learned senior counsel Mr. Shekhar Naphade
appearing for the contesting respondents has made a detailed reference
to the proceedings in the suit and has emphatically argued that in this civil
suit, which was filed way back in the year 2004 and in which the written
statement was filed by the appellant on 16.11.2005, the attempt to
present a counter-claim nearly 13 years later could not have been
countenanced.
9.1. The learned senior counsel has particularly referred to the order
dated 05.12.2018 and has submitted that surreptitiously filed counter-
claim by the appellant was rightly taken off the record, particularly when
written statement had been filed more than 13 years back and not even
an application was moved to seek permission to place the counter-claim
on record. The learned senior counsel would further submit that even if in
the appeal against the order dated 05.12.2018, serious objections were
not raised on the question of filing of the application by the appellant and
a concession was stated for not raising objection with reference to the
stage of suit where issues had already been framed, such a concession
cannot bind a party contrary to law nor could be read as acceptance of
filing the counter-claim at a belated stage.
9.2. The learned senior counsel has further submitted that the order
dated 02.05.2019 had been a cryptic and non-speaking order and therein,
the learned Single Judge failed to consider the law applicable to the case
including Rule 95 of the Bombay High Court (Original Side) Rules. The
learned senior counsel has also submitted, with a strong reliance on a 3-
Judge Bench decision of this Court in the case of Ashok Kumar Kalra v.
Wing Cdr. Surendra Agnihotri and Ors.: (2020) 2 SCC 394 that
belatedly filed counter-claim in the present matter is directly hit by the law
declared by this Court.
9.3. It has also been submitted on behalf of the respondents that the
subject matter of the said SLP (C) No. 1786 of 2021 before this Court was
concerning transfer of the suit property by the appellant to a third party
and no question regarding counter-claim was mentioned or argued
therein. Hence, the order dated 26.02.2021 passed in disposal of the said
SLP does not operate against the objections of the respondent
concerning the counter-claim.
10. In his rejoinder submissions, learned senior counsel for the
appellant would submit that the said decision in Ashok Kumar Kalra
(supra) does not operate against the prayer of the appellant for taking the
counter-claim on record and rather, the principles of law enunciated
therein support the submissions made on behalf of the appellant.
11. Having given thoughtful consideration to the rival submissions and
having examined the material placed on record, we are clearly of the view
that neither the impugned order of the Division Bench of the High Court
could be approved nor the submissions made on behalf of the
respondents against the legality and validity of the order dated
02.05.2019 could be accepted.
12. As regards the provisions of law applicable to the case, we may
usefully take note of the provisions contained in Order VIII Rule 6-A of the
Code of Civil Procedure, 19083 and Rule 95 of the Bombay High Court
(Original Side) Rules as follows: -
Order VIII Rule 6-A CPC:
“6-A. Counterclaim by defendant.—(1) A defendant in a suit
may, in addition to his right of pleading a set-off under Rule 6, set
up, by way of counterclaim against the claim of the plaintiff, any
right or claim in respect of a cause of action accruing to the
defendant against the plaintiff either before or after the filing of the
suit but before the defendant has delivered his defence or before
the time limited for delivering his defence has expired, whether
such counterclaim is in the nature of a claim for damages or not:
Provided that such counterclaim shall not exceed the pecuniary
limits of the jurisdiction of the court.
(2) Such counterclaim shall have the same effect as a cross-suit
so as to enable the court to pronounce a final judgment in the
same suit, both on the original claim and on the counterclaim.
(3) The plaintiff shall be at liberty to file a written statement in
answer to the counterclaim of the defendant within such period as
may be fixed by the court.
(4) The counterclaim shall be treated as a plaint and governed by
the rules applicable to plaints.”
3 ‘CPC’, for short.
Rule 95 of the Bombay High Court (Original Side) Rules:
“95. A defendant in a suit, in addition to his right of pleading a set-
off under Order VIII, Rule 6 of the Code of Civil Procedure, may
set-up by way of counter-claim against the claims of the plaintiff
any right or claim in respect of a cause of action accruing to the
defendant either before or after the filing of the suit but before the
defendant has delivered his defence and before the time limited
for delivering his defence has expired, whether such counter-claim
sounds in damages or not, and such counter-claim shall have the
same effect as a cross-suit, so as to enable the Court to
pronounce a final judgment in the same suit, both on the original
claim and on the counter-claim; and the plaintiff (if so advised)
shall be at liberty to file a reply to the counter-claim of the
defendant within eight weeks after service upon him or his
Advocate on record of a copy of the defendant’s counter-claim;
and the Court or the Judge in Chambers may, on the application of
the plaintiff before trial if in the opinion of the Court or the Judge
such counter-claim cannot be disposed of in the pending suit or
ought not to be allowed, refuse permission to the defendant to
avail himself thereof and require him to file a separate suit in
respect thereof.”
13. In Ashok Kumar Kalra (supra), the 3-Judge Bench of this Court
essentially considered the question on reference as to whether it is
mandatory for a counter-claim of the defendant to be filed along with the
written statement. While answering this question, this Court underscored
the basic principles that procedural law should not be construed in such a
way that it would leave court helpless; and that a wide discretion had
been given to the Civil Court regarding the procedural elements of a suit.
Having said so, this Court observed that a counter-claim is designed to
avoid multiplicity of proceedings; that time limit for filing a counter-claim is
not explicitly provided for but there is limitation as to the accrual of the
cause of action. However, the majority opinion has been that the
defendant cannot be permitted to file counter-claim after the issues are
framed and the suit has proceeded substantially. It was observed and
held in the lead judgment, inter alia, as under: -
“18. As discussed by us in the preceding paragraphs, the whole
purpose of the procedural law is to ensure that the legal process is
made more effective in the process of delivering substantial
justice. Particularly, the purpose of introducing Rule 6-A in Order 8
CPC is to avoid multiplicity of proceedings by driving the parties to
file separate suit and see that the dispute between the parties is
decided finally. If the provision is interpreted in such a way, to
allow delayed filing of the counterclaim, the provision itself
becomes redundant and the purpose for which the amendment is
made will be defeated and ultimately it leads to flagrant
miscarriage of justice. At the same time, there cannot be a rigid
and hyper-technical approach that the provision stipulates that the
counterclaim has to be filed along with the written statement and
beyond that, the court has no power. The courts, taking into
consideration the reasons stated in support of the counterclaim,
should adopt a balanced approach keeping in mind the object
behind the amendment and to subserve the ends of justice. There
cannot be any hard and fast rule to say that in a particular time the
counterclaim has to be filed, by curtailing the discretion conferred
on the courts. The trial court has to exercise the discretion
judiciously and come to a definite conclusion that by allowing the
counterclaim, no prejudice is caused to the opposite party, process
is not unduly delayed and the same is in the best interest of justice
and as per the objects sought to be achieved through the
amendment. But however, we are of the considered opinion that
the defendant cannot be permitted to file counterclaim after the
issues are framed and after the suit has proceeded substantially. It
would defeat the cause of justice and be detrimental to the
principle of speedy justice as enshrined in the objects and reasons
for the particular amendment to CPC.
21. We sum up our findings, that Order 8 Rule 6-A CPC does not
put an embargo on filing the counterclaim after filing the written
statement, rather the restriction is only with respect to the accrual
of the cause of action. Having said so, this does not give absolute
right to the defendant to file the counterclaim with substantive
delay, even if the limitation period prescribed has not elapsed. The
court has to take into consideration the outer limit for filing the
counterclaim, which is pegged till the issues are framed. The court
in such cases have the discretion to entertain filing of the
counterclaim, after taking into consideration and evaluating
inclusive factors provided below which are only illustrative, though
not exhaustive:
(i) Period of delay.
(ii) Prescribed limitation period for the cause of action pleaded.
(iii) Reason for the delay.
(iv) Defendant's assertion of his right.
(v) Similarity of cause of action between the main suit and the
counterclaim.
(vi) Cost of fresh litigation.
(vii) Injustice and abuse of process.
(viii) Prejudice to the opposite party.
(ix) And facts and circumstances of each case.
(x) In any case, not after framing of the issues.”
13.1. In the partly dissenting and partly concurring judgment, one of the
Hon’ble Judges of the Bench stated his opinion that though the normal
rule is that subsequent to filing of written statement, counter-claim cannot
be filed after issues have been framed, under exceptional circumstances,
counter-claim may be permitted to be filed even after issues have been
framed, but before commencement of recording of plaintiff’s evidence.
The Hon’ble Judge observed, inter alia, as follows: -
“31. From the foregoing discussion, it is clear that a counterclaim
can be filed if two conditions are met: first, its cause of action
complies with Order 8 rule 6-A(1); and second, it is filed within the
period specified under the Limitation Act. Clearly, by itself, Rule 6-
A does not specifically require that a counterclaim has to be filed
along with the written statement. In the absence of a particular
mandate under this Rule, it is necessary to look to other provisions
of CPC to determine whether a counterclaim can be filed after a
written statement.
38. A conjoint and harmonious reading of Rules 6-A, 9 and 10 of
Order 8 as well as Order 6 Rule 17 CPC thus reveals that the
court is vested with the discretion to allow the filing of a
counterclaim even after the filing of the written statement, as long
as the same is within the limitation prescribed under the Limitation
Act, 1963. In this regard, I agree with the propositions laid down in
the decisions discussed below.
56.The above discussion lends support to the conclusion that even
though Rule 6-A permits the filing of a counterclaim after the
written statement, the court has the discretion to refuse such filing
if it is done at a highly belated stage. However, in my considered
opinion, to ensure speedy disposal of suits, propriety requires that
such discretion should only be exercised till the framing of issues
for trial. Allowing counterclaims beyond this stage would not only
prolong the trial, but also prejudice the rights that may get vested
with the plaintiff over the course of time.
60. …….I conclude that it is not mandatory for a counterclaim to
be filed along with the written statement. The court, in its
discretion, may allow a counterclaim to be filed after the filing of
the written statement, in view of the considerations mentioned in
the preceding paragraph. However, propriety requires that such
discretion should ordinarily be exercised to allow the filing of a
counterclaim till the framing of issues for trial. To this extent, I
concur with the conclusion reached by my learned Brothers.
However, for the reasons stated above, I am of the view that in
exceptional circumstances, a counterclaim maybe permitted to be
filed after a written statement till the stage of commencement of
recording of the evidence on behalf of the plaintiff.”
14. In a conspectus of the aforesaid and while proceeding on the
fundamental principles that the rules of procedure are intended to
subserve the cause of justice rather than to punish the parties in conduct
of their case, we are clearly of the view that the counter-claim in question
could not have been removed out of consideration merely because it was
presented after a long time since after filing of the written statement.
Indisputably, the counter-claim was filed on 07.09.2018 and until that
date, issues had not been framed in the suit. In fact, the issues were
framed only on 05.12.2018, the very date on which the learned Single
Judge in the first round of these proceedings took the counter-claim off
the record for no permission/leave having been sought for its
presentation. In appeal against the order dated 05.12.2018, the Division
Bench permitted filing of the requisite application seeking permission to
file the counter-claim, while taking note of the submissions of the
plaintiffs-respondents that they will not raise an objection to such
application on the ground that the issues had already been framed and
documentary evidence had been presented; and the Division Bench
expected the learned Single Judge to deal with such an application on its
own merits. Pursuant to the liberty so granted by the Division Bench, the
appellant moved the application seeking permission to place the counter-
claim on record and in support thereof, filed a detailed affidavit stating
specific reasons for which the counter-claim was sought to be filed,
including that of avoiding the multiplicity of proceedings. The appellant
also pointed out the fact that he was earlier engaged in the dispute
concerning succession to the property, which came to be settled in his
favour only in the year 2017. The learned Single Judge, while passing the
order dated 02.05.2019, did not elaborate much on the other aspects but
pointed out the reason for accepting the prayer of the appellant that it
would avoid multiplicity of proceedings; and in all fairness to the plaintiffs-
respondents, kept all their defences, including as to limitation, specifically
open. The said order dated 02.05.2019, even if passed by the learned
Single Judge on the very first day of consideration of the application
moved by the appellant, had been a just and proper order which was
conducive to the proper progression of the proceedings while avoiding
multiplicity of litigation. There was no justified reason for the Division
Bench to have interfered with the order so passed by the learned Single
Judge.
14.1. In the totality of the facts and circumstances of the present case,
we are clearly of the view that neither the requirements of Order VIII Rule
6-A CPC or Rule 95 of the Rules nor the principles enunciated and
explained in Ashok Kumar Kalra (supra) operate as a bar over the
prayer of the appellant for taking the belatedly filed counter-claim on
record, which was indeed filed before framing of issues.
15.Apart from the above, there are a few other reasons, for which we find the impugned order of the Division Bench to be wholly unjustified. 15.1. As noticed, in the order dated 26.02.2021, this Court had provided for expeditious proceedings while taking note of the submissions of the parties and while ensuring that even if the appellant shall transfer his right, title and interest to third parties, such transferees will not seek filing of further pleadings and shall remain bound by the proceedings of the suit in question. In that context, it was provided that the proposed purchasers shall be impleaded in the suit; and their undertaking was also recorded that they will adopt the written statement and counter-claim filed by the appellant and will not make any request for filing further written statements or independent written statement as such. This Court further provided that the suit shall proceed from the stage where it was pending and the proposed purchasers will not move any application for filing independent evidence/document. 15.2. True it is, as contended on behalf of the respondents, that the subject matter of the said SLP before this Court was of the proposition of the appellant to transfer the suit property to a third party and not regarding the permissibility to file counter-claim but, for this reason alone, the substance and impact of the order passed by this Court is not whittled down. Even when the subject matter of the said SLP related to the proposition of the appellant to transfer the suit property to a third party and even when the arrangement provided by the order dated 26.02.2021 was essentially concerning the defendant-appellant and the prospective transferees, fact of the matter remains that the said order was passed in the presence of the plaintiffs-respondents, whose apprehension of a different nature, about the likely claims in future by the legal heirs of the appellant, was also taken note of with its response on behalf of the appellant. This Court, thereafter, re-emphasised the requirements of expeditious proceedings. 15.3. When construed on its pith and substance, the impact of the said order dated 26.02.2021 on the procedural aspect concerning pleadings has clearly been that existence of the counter-claim on record was taken by this Court as a fait accompli; and this order left a little, rather nil, scope for upsetting the existing pleadings. The expectations had been that the proceedings in the suit coupled with the counter-claim shall be taken forward from the given stage onwards. 15.4. On a comprehension of the impugned order dated 30.11.2021, we are impelled to observe that even when this Court’s order dated 26.02.2021 was placed before it, the Division Bench of the High Court did not consider its purport and meaning as also its impact on the suit proceedings and on the question of filing of counter-claim. There was no reason for re-opening of the question relating to the filing of counter-claim after the said order of this Court dated 26.02.2021.
16.Apart from the above, on the date on which the Division Bench chose to upset the proceedings of the suit in question by setting aside the order dated 02.05.2019, much progression had taken place, including the filing of written statement by the plaintiffs to such counter-claim; framing of issues on the counter-claim; and recording of the plaintiffs’ evidence. Moreover, expeditious proceedings were required to be ensured by all the concerned, in view of the earlier orders passed by the Division Bench of the High Court as also by this Court. 16.1. With respect, it appears that the Division Bench of the High Court, while passing the impugned order dated 30.11.2021, proceeded in a rather cursory manner in directing reconsideration of the prayer of the appellant for taking the counter-claim on record without considering the relevant aspects of the proceedings in the suit and the law applicable thereto as also without considering the likely impact of its order on the proceedings, which had already taken place and which were under progress. Viewed from any angle, the impugned order deserves to be set aside.
17.In the passing, we may observe that one small segment of arguments on behalf the appellant had also been concerning maintainability of intra-court appeal against the order dated 02.05.2019 for no valuable rights having been decided, which had been duly countered on behalf of the respondents. However, this aspect need not be dealt with in this appeal, looking to the facts and circumstances of the present case, where the impugned order of the Division Bench is not being approved on its merits. Other questions are left open, to be examined in an appropriate case.
18.Before parting, we may also observe that during the course of submissions, it has been pointed out before us that the subject suit is proceeding in defendant’s evidence, particularly after this Court had stayed the operation and effect of the impugned order dated 30.11.2021 by the order dated 03.01.2022. Needless to reiterate what has already been observed in the previous orders that the parties shall be expected to extend full co-operation for early disposal of the suit.
19.In the result, this appeal succeeds and is allowed; the impugned order dated 30.11.2021 as passed by the Division Bench of the High Court is set aside; and order dated 02.05.2019 as passed by the learned Single Judge is restored. No costs. (DINESH MAHESHWARI) (ANIRUDDHA BOSE) NEW DELHI; OCTOBER 12, 2022.